Draper v. City of Burley

• Decision Date: 14 October 1933
• Docket Number: 5926
• Citation: 26 P.2d 128,53 Idaho 530
• Parties: W. H. DRAPER, Respondent, v. CITY OF BURLEY, a Municipal Corporation, Appellant
• Court: Idaho Supreme Court

26 P.2d 128

53 Idaho 530

W. H. DRAPER, Respondent, v. CITY OF BURLEY, a Municipal Corporation, Appellant

No. 5926

Supreme Court of Idaho

October 14, 1933

MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALK-ACTION FOR INJURY-NOTICE OF DEFECT-EVIDENCE-INSTRUCTIONS.

1. In an action against city for injury sustained by pedestrian in collision with low store awning, plaintiff held required to prove that officers having charge of city's thoroughfares had knowledge of dangerous condition, or that condition existed long enough to charge them with constructive notice.

2. In action against city for injury sustained by pedestrian in collision with store awning, evidence held insufficient to sustain jury's implied finding that city had actual or constructive notice of dangerous condition of awning.

3. In action against city for injuries sustained by pedestrian in collision with store awning, instruction that city is liable without notice of nuisance and is charged with duty of keeping streets and sidewalks free for use and passage without danger held erroneous as placing on city duty of insurer.

4. Instruction that cities are liable for "negligence in maintaining streets" in reasonably safe condition held erroneous; cities being liable for negligence in "performance of duty to maintain streets" in reasonably safe condition.

5. Instruction that, to render city liable for injuries caused pedestrian by collision with defective store awning, no notice to city was necessary if constructive notice was present, held irreconcilably contradictory, requiring reversal.

6. Contributory negligence, if shown, is available as defense regardless of which party introduces evidence showing it.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. Adam B. Barclay, Judge.

Action for damage for personal injury. Judgment for plaintiff motion for new trial denied. Reversed and remanded, with instruction to grant new trial.

Reversed and remanded, with instruction. Costs awarded to appellant.

S. T. Lowe, for Appellant.

Before a municipality can be held to be negligent in failing to keep its streets or sidewalks in a reasonably safe condition for public travel, it must have had either actual or constructive notice or knowledge of the defect prior to the injury. (Douglas v. City of Moscow, 50 Idaho 104, 294 P. 334; Goodman v. Village of McCammon, 42 Idaho 696, 277 P. 789; Griffen v. City of Lewiston, 6 Idaho 231, 55 P. 545; Eaton v. City of Weiser, 12 Idaho 544, 86 P. 541, 118 Am. St. 225.)

Knowledge or notice of the municipality of the defective condition of the street or sidewalk, either actual or constructive is a question of fact to be determined by the jury. (Todd v. City of Hailey, 45 Idaho 175, 26 P. 1092; Powers v. City of Boise, 22 Idaho 286, 125 P. 194; Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850.)

A. G. Sathre, for Respondent.

It is not necessary for the respondent to show that the city or any of the authorities of the city had actual notice of the obstruction. It was a question for the jury to say whether, under the circumstances of the case, the obstruction was of such a dangerous character and had remained in the position it was at the time of the injury to Mr. Draper a sufficient time to put the city upon notice that the same was dangerous. (Powers v. Boise City, supra; Miller v. City of Mullan, 17 Idaho 28, 104 P. 660, 19 Ann. Cas. 1107; Baillie v. City of Wallace, 24 Idaho 706, 135 P. 850.)

MORGAN, J. Givens and Holden, JJ., concur. BUDGE, C. J., and WERNETTE, J., Concurring in Part and Dissenting in Part.

OPINION

MORGAN, J.

Respondent, while walking along one of the streets of appellant, collided with an awning extending over the sidewalk in front of a store building placed and maintained there by the owner or occupant of the building. As a result of the collision respondent suffered personal injury and prosecuted this action for damage resulting therefrom. The case was tried to a jury and verdict and judgment were for plaintiff. Motion for a new trial was made and overruled, and defendant has appealed from the judgment and from the order denying the new trial.

The evidence shows the awning was attached to the building and so constructed that it might be raised and lowered; that respondent is five feet ten inches in height and that he was struck on the forehead by the part of the awning farthest from the building; that some time after the accident measurements were made which showed that part of the awning to be five feet eight inches above the sidewalk.

There was no evidence that any officer of appellant knew, at any time prior to the accident, that the awning was low enough to cause it and, appellant insists, the evidence fails to show the awning had remained in the position it was in at the time of the accident long enough to give constructive notice to its officers of the dangerous condition. The only evidence bearing on this point is to be found in the testimony of the witness, Nye, that he constructed the awning about sixteen years prior to the trial. He further testified:

"Q. I believe you stated you didn't know when this awning had been either rebuilt or torn down?

"A. Well, I don't know; I put the awning up but I don't know whether it has ever been taken down since then. I don't hardly think so; there were no changes in the rails where the castings were fastened on to the beams, yet it may have been. . . . the awning, when it was put up in the first place, was about six feet; four or five inches, and in the course of time--that was the first awning in town and it was too heavy for the beam, and it turned the beam a little, and a quarter of an inch turn would let it down.

"Q. Would that beam change the height of the awning?

"A. Well, it could change the height of the awning any time it happened to give that little twist.

"Q. You couldn't tell when that twist would come?

"A. No.

"Q. Would it come one day and not the next?

"A. When it came the awning would be down.

"Q. Since the twist came in the awning it has been that same height all the time?

"A. Yes, unless it has been gradually twisting; a very little twist would let it down."

At the time of the accident, and for a number of years prior thereto, appellant had an ordinance requiring that awnings be not less than seven feet above the sidewalk, and making it the duty of the marshal to enforce the regulation and to remove obstructions maintained in violation thereof. The evidence shows the awning, when constructed, while high enough not to be dangerous to respondent, was not high enough to comply with the ordinance, and fails to show whether it had been reconstructed prior to the accident.

There is no evidence tending to show how long, prior to the accident, this awning had been maintained at a height which rendered it dangerous to pedestrians. In the absence of proof that the officers having charge of the thoroughfares of the city had knowledge of the dangerous condition which caused this accident, it was incumbent upon respondent to prove such condition had existed long enough to charge them with constructive notice thereof.

In Goodman v. Village of McCammon, 42 Idaho 696, 247 P. 789, this court quoted from Miller v. Village of Mullan, 17 Idaho 28, 104 P. 660, 19 Ann. Cas. 1107, as follows:

"It is settled in this state that cities and villages incorporated under the general law of the state 'are liable in damages for a negligent discharge of the duty of keeping streets and alleys in a reasonably safe condition for use by travelers in the usual modes.' . . . .

"Without negligence there can be no recovery. Negligence may arise out of a failure to act on actual and positive knowledge of a defect or danger in a street or sidewalk, or it may equally arise out of constructive knowledge on the part of the proper village or city authorities that a defect or danger exists."

See, also, Douglas v. City of Moscow, 50 Idaho 104, 294 P. 334.

In Todd v. City of Hailey, 45 Idaho 175, 260 P. 1092, 1094, the court said:

"There is no definite rule as to what length of time would be required to justify an inference of notice to a city of defects in a sidewalk. Numerous cases can be found wherein the existence of such a defect for a period varying from one to several days has been held, as a matter of law, sufficient on which a jury could base a finding that the city could have learned of the defect by ordinary diligence, and that the jury, under proper instructions, must be left to determine from the evidence, what lapse of time is necessary to charge a city with constructive notice. We will cite only a very few of the authorities sustaining this statement: City of Covington v. Jones, (Ky.) 25 Ky. L. Rep. 1983, 79 S.W. 243; McKissick v. City of St. Louis, 154 Mo. 588, 55 S.W. 859; Rosevere v. Borough of Osceola Mills, 169 Pa. 555, 32 A. 548; City of Savanna v. Trusty, 98 Ill.App. 277; Holitza v. Kansas City, supra [68 Kan. 157, 74 P. 594]; Laurie v. City of Ballard, 25 Wash. 127, 64 P. 906; 28 Cyc. 1390, 1500, 1502."

Notice to the city, actual or constructive, of the obstruction which rendered the use of the sidewalk dangerous to pedestrians is necessary to justify the judgment and order appealed from. It was for the jury to say, by its verdict, appellant had such notice, but the verdict, in order to be upheld, must be based upon evidence, and the evidence in this particular is insufficient.

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